Bit Parts

Fred Astaire's Widow Is Denied TRO to Stop Tribute Awards

The U.S. District Court for the Southern District of New York denied a request by Robyn Astaire for a temporary restraining order against the “Fred and Adele Astaire Awards.” Astaire v. McKenzie, 10 Civ. 4305. Fred Astaire died in 1987; Adele was his sister and early dance partner. The defendants in Robyn Astaire's complaint include her step-daughter, Phyllis Ava Astaire McKenzie, and the not-for-profit Career Transition for Dancers. District Judge Miriam G. Cedarbaum noted in a brief ruling: “Essentially, plaintiff claims a right of publicity in the name Fred Astaire. The Lanham Act does not create a right of publicity without either secondary meaning or likelihood of confusion, the essential elements of a trademark claim. Plaintiff has made no showing that an 'Astaire Awards' presentation has acquired a secondary meaning. Plaintiff has not shown that consumers will be deceived into believing that the late Fred Astaire endorsed defendants' awards, which are described as 'in tribute' to Fred and Adele Astaire.”

No Implied License or Work for Hire Is Found in Song's Spanish Translation

When the U.S. District Court for the Southern District of Florida ordered The Coca-Cola Co. to give immediate songwriting credit to Rafael “Rafa” Vergara for creating a Spanish translation version of the song “Waivin' Flag” for use during the World Cup Soccer Games, the district court noted of Vergara's infringement complaint: “[W]hile an implied, non-exclusive license undoubtedly existed when the work was initially published, this license was unequivocally revoked the moment the present lawsuit was filed.” Hermosilla v. The Coca-Cola Co., 10-21418. Universal Music Latin America had originally contacted Vergara, who has written songs for popular artists like Marc Anthony, on behalf of Coca-Cola. Coca-Cola argued the Spanish version was at least a work for hire. However, District Judge K. Michael Moore noted: “The document that Coca-Cola relies on is an e-mail [from Vergara] that is an offer to deem the song a work-for-hire in exchange for Universal and Coca-Cola agreeing to other conditions. (Vergara asked that 'my credits are respected as producer and adapter of the Spanish version (that every time the name of any composer of this version appears, my name appears as adapter')). ' [S]hortly thereafter, Universal sent Vergara contracts constituting a counteroffer that did not contain Vergara's requested terms. ' Vergara then expressly revoked the prior offer '. Thus, the translation of song lyrics by Vergara do not qualify as a work-for-hire because the writing requirement for work-for-hire contracts is not met.”

“Straight-Lining” Film Fees Allocation Breaches Implied Obligation

The California Court of Appeal, Second District, found there was substantial evidence for a jury to have decided that Warner Bros. Entertainment breached its implied covenant of good faith and fair dealing to producer and profit participant Alan Ladd Jr.'s film production company. Ladd v. Warner Bros. Entertainment Inc., B204015. The jury had disapproved of Warner's “straight-lining” method of allocating film licensing fees from broadcast and TV deals the same for each of its movies, without taking into account the value of each individual movie. Ladd's company and Warner had worked under a joint film-production venture between 1979 and 1985. The court of appeal upheld the jury's $3,190,625 damages award. The court then reinstated the Ladd plaintiffs' claims of fraud from Warner's position that the hit movie Blade Runner had been “grossly unprofitable” and of leaving screen credits and the Ladd company logo off film and DVD packagings.

Fred Astaire's Widow Is Denied TRO to Stop Tribute Awards

The U.S. District Court for the Southern District of New York denied a request by Robyn Astaire for a temporary restraining order against the “Fred and Adele Astaire Awards.” Astaire v. McKenzie, 10 Civ. 4305. Fred Astaire died in 1987; Adele was his sister and early dance partner. The defendants in Robyn Astaire's complaint include her step-daughter, Phyllis Ava Astaire McKenzie, and the not-for-profit Career Transition for Dancers. District Judge Miriam G. Cedarbaum noted in a brief ruling: “Essentially, plaintiff claims a right of publicity in the name Fred Astaire. The Lanham Act does not create a right of publicity without either secondary meaning or likelihood of confusion, the essential elements of a trademark claim. Plaintiff has made no showing that an 'Astaire Awards' presentation has acquired a secondary meaning. Plaintiff has not shown that consumers will be deceived into believing that the late Fred Astaire endorsed defendants' awards, which are described as 'in tribute' to Fred and Adele Astaire.”

No Implied License or Work for Hire Is Found in Song's Spanish Translation

When the U.S. District Court for the Southern District of Florida ordered The Coca-Cola Co. to give immediate songwriting credit to Rafael “Rafa” Vergara for creating a Spanish translation version of the song “Waivin' Flag” for use during the World Cup Soccer Games, the district court noted of Vergara's infringement complaint: “[W]hile an implied, non-exclusive license undoubtedly existed when the work was initially published, this license was unequivocally revoked the moment the present lawsuit was filed.” Hermosilla v. The Coca-Cola Co., 10-21418. Universal Music Latin America had originally contacted Vergara, who has written songs for popular artists like Marc Anthony, on behalf of Coca-Cola. Coca-Cola argued the Spanish version was at least a work for hire. However, District Judge K. Michael Moore noted: “The document that Coca-Cola relies on is an e-mail [from Vergara] that is an offer to deem the song a work-for-hire in exchange for Universal and Coca-Cola agreeing to other conditions. (Vergara asked that 'my credits are respected as producer and adapter of the Spanish version (that every time the name of any composer of this version appears, my name appears as adapter')). ' [S]hortly thereafter, Universal sent Vergara contracts constituting a counteroffer that did not contain Vergara's requested terms. ' Vergara then expressly revoked the prior offer '. Thus, the translation of song lyrics by Vergara do not qualify as a work-for-hire because the writing requirement for work-for-hire contracts is not met.”

“Straight-Lining” Film Fees Allocation Breaches Implied Obligation

The California Court of Appeal, Second District, found there was substantial evidence for a jury to have decided that Warner Bros. Entertainment breached its implied covenant of good faith and fair dealing to producer and profit participant Alan Ladd Jr.'s film production company. Ladd v. Warner Bros. Entertainment Inc., B204015. The jury had disapproved of Warner's “straight-lining” method of allocating film licensing fees from broadcast and TV deals the same for each of its movies, without taking into account the value of each individual movie. Ladd's company and Warner had worked under a joint film-production venture between 1979 and 1985. The court of appeal upheld the jury's $3,190,625 damages award. The court then reinstated the Ladd plaintiffs' claims of fraud from Warner's position that the hit movie Blade Runner had been “grossly unprofitable” and of leaving screen credits and the Ladd company logo off film and DVD packagings.